Majoria v Jino [2007] SBCA 20; CA-CAC 36 of 2006 (1 November 2007)

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NATURE OF JURISDICTION:	Appeal from Judgment of the High Court of Solomon Islands (Brown J)
COURT FILE NUMBER:	Civil Appeal No 36 of 2006 (On Appeal from High Court Civil Case No 255 of 2005)
DATE OF HEARING:	28 March 2007
DATE OF JUDGMENT:	1st November 2007 (Read by the RHC)
THE COURT:	Lord Slynn of Hadley P, Adams and Salmon JJA.
PARTIES:	Havea Majoria (representing the Kadiki tribe of Vangunu Island, Marovo, Western Province) Appellant V Oliver Bikomoro Jino (representing the Bareke Tribe of Vangunu Island, Marovo, Western Province First Respondent The Clerk to the Customary Land Appeal Court (Western) (representing the Customary Land Appeal Court (Western Province) Second Respondent
ADVOCATES:
Appellant:	J. Apaniai
First Respondent:	M. Bird
KEYWORDS:
EX TEMPORE/RESERVED:
ALLOWED/DISMISSED:
PAGES:	1-20

On 7 August 2003, the Marovo Council of Chiefs made the following determination over what is described as "Rodo Customary Land" _

"1. The Council of Chiefs agreed that the Plaintiffs members are of the Kadiki tribe according to their genealogy provided.

2. The Defendants members are not members of the Kadiki tribe according to the genealogy connection produced before the Council.

3. Since the members of the Defendants have no genealogy connection with the Kadiki tribe, they therefore have no land rights, beneficial interests, or ownership within Rodo Customary land.

4. The Council of Chiefs agreed that the boundary of Rodo Customary Land is between Nama and Punutu [Vunutu] Rivers."

The parties to these proceedings before the Marovo Council of Chiefs comprised the Appellant and the First Respondent in their representative capacities. (In this judgment we refer to the Appellant and the First Respondent in this representative sense.) On 25 August 2003 the First Respondent commenced prerogative writ proceedings in the High Court against the Appellant seeking to quash this decision. On 13 August 2004, the proceedings were discontinued.

The Appellant represents the Kadiki tribe and sought orders in the High Court to vindicate, in effect, the customary ownership of that tribe in respect of the Rodo Customary Land. The First Respondent claims that a parcel of land called the "Havahava Customary Land" which also falls between the Nama and Vunutu Rivers is, however, not owned by the Kadiki tribe but by the Bareke tribe. Between the Nama and Vunutu Rivers are the Taveacha River and other geographical features such as the Havahava ridge. The First Respondent claims that the Havahava land is the area between the Nama River and the Taveacha River and associated geographical features. It is not necessary for present purposes to be more precise. What is important is to note that the claimed Havahava land falls entirely within the area between the Nama and Vunutu Rivers.

The First Respondent claims that, despite the adverse decision of the Marovo Council of Chiefs set out above, Havahava land is not part of Rodo customary land. The First Respondent has, in substance, granted timber rights to "Havahava land" to a third party. The Appellant sought orders preventing the proposed logging, seeking an account in respect of past logging and other orders as to the jurisdiction of the Customary Land Appeal Court (Western) (WCLAC) to reconsider the question of customary ownership. On 22 September 2006 Brown J rejected the Appellant’s application. The Appellant appeals to this Court from the judgment of Brown J.

Although the Second Respondent is a party to the appeal and is represented by the Attorney-General, the Attorney-General did not appear on the hearing of the Appeal. We understand the position to be that the Second Respondent did not wish to be heard and will abide the decision of the Court.

The following provisions of the Forest Resources and Timber Utilization Act are relevant -

"8. (3) ... [The] Provincial Executive shall in consultation with the appropriate Government discuss and determine with the customary landowners and the applicant matters relating to -

(a) whether or not the landowners are willing to negotiate for the disposal of their timber rights to the applicant;

(b) whether the persons proposing to grant the timber rights in question are the persons, and represent all the persons, lawfully entitled to grant such rights, and if not who such persons are;

(e) the participation of the appropriate Government in the venture of the applicant.

10. (1) Any person who is aggrieved by the determination of the council made under section 8(3) (b) or (c) may, within one month from the date public notice was given in the manner set out in section 9(2) (b), appeal to the customary land appeal court having jurisdiction for the area in which the customary land concerned is situated and such court shall hear and determine the appeal.

(2) Notwithstanding any provision to the contrary in any other law, the order or decision of a customary land appeal court on any appeal entertained by it under subsection (1) shall be final and conclusive and shall not be questioned in any proceedings whatsoever."

"254. (1) A local court shall, subject to the provisions of this section, sections 12,13 and 14 of the Local Courts Act, have exclusive jurisdiction in all matters and proceedings of a civil nature affecting or arising in connection with customary land other than-

(a) any such matter or proceeding for the determination of which some other provision is expressly made by this Act; and

(b) any matter or proceeding involving a determination whether any land is or is not customary land.

254. (3) The decision of a local court given in exercise of its jurisdiction under this section shall be final and conclusive, and shall not be questioned in any proceedings whatsoever save an appeal under s256.

(4) The provisions of this section shall have effect notwithstanding anything contained in any other law other than sections 12, 13 and 14 of the Local Courts Act, or in any warrant establishing any local court.

256 (1) Any person aggrieved by any order or decision of a local court given in exercise of its jurisdiction under section 254 or section 13(d) or (e) of the Local Courts Act may, within three months from the date of such order or decision, appeal therefrom to the customary land appeal court having jurisdiction.

(4) [Orders of the High Court and customary land appeal court (subject to sub s (3)) final and conclusive and not to be questioned in any proceedings whatsoever.]"

The relevant limitation on the jurisdiction of the local court in relation to customary land disputes is-in-the Local Courts Act -

"12. (1) Notwithstanding anything contained in this Act or in any other law, no local court shall have jurisdiction to hear and determine any customary land dispute unless it is satisfied that -

(2) It shall be sufficient evidence that the requirements of paragraphs (a) and (c) of subsection (1) have been fulfilled if the party referring the dispute to the local court produces to the local court a certificate, as prescribed in Form 1 of the Schedule, containing the required particulars and signed by two or more of the chiefs to whom the dispute had been referred.

(3) In addition to producing a certificate pursuant to subsection (2), the party referring the dispute to the local court shall lodge with the local court a written statement setting out -

The following chronology is either agreed or otherwise is not controversial. On 26 March 2002, Rodo Development Company limited (RDC) submitted an application to the Commissioner of Forests under the Forest Resources and Timber Utilisation Act for approval to negotiate timber rights over land described as "Area ... from Nama River to Punutu River (Rodo land)". On 18 September 2002, the Western Provincial Executive (WPE) determined that the Appellant and other named members of his tribe were "lawfully able and entitled to grant timber right in the area bounded in red on the attached map being land held by the land owning group" and issued the requisite certificate. The map forms part of the papers in the Appeal book. It is a photocopy which does not, unfortunately, indicate colours. However, it is agreed that the land so delineated is the whole of the land between the Nama and the "Vunutu" (i.e. Punutu) Rivers.

On 4 October 2002, the First Respondent and other members of his tribe lodged an appeal to the WCLAC from the decision of the WPE under s1 0(1) of the Forest Resources and Timber Utilization Act. The grounds of appeal, in substance, allege that the members of the WPE were ignorant of the customary rights of those owning Rodo land and the true owners were the First Respondent and other members of his tribe. The notice of appeal concluded –

‘With the above reasons we the undersigned representing the true Landowning Tribes of Rodo Customary Land ... hereby object in the strongest terms the determination given by the Provincial Executive and appeal against the determination on the above land."

Proceedings were commenced in the High Court by the appellant (described as "representing the Rodo Landowners of Vangunu Island") against the First Respondent and others, seeking declarations concerning the binding character of a decision of Chief Ishmael Ngatu made on 26 July 1914 about the customary ownership of Rodo land. The Chief determined a dispute as to the ownership of Rodo land between Rikana (of whom the Appellant is a descendant) and Luze (of whom the First Respondent is a descendant), holding that the former was the customary owner. On 8 April 2003 Brown J held that the decision was legally binding and applied with full force and effect over customary matters, including land rights. Unfortunately no precise geographical information is contained in the material before us - and, as we think, before Brown J - that identifies precisely the land which was the subject of the decision. There was no appeal from this decision. In the absence of identifying the land to which it refers, this judgment is of limited assistance in the present proceedings.

For some (unexplained) reason a certificate of no appeal in respect of the decision of the WPE was issued by Magistrate Fasi of the Central Magistrate Court on 18 April 2005. On 26 April 2005, however, Principal Magistrate Maina of the Western District Magistrate Court informed the Commissioner of Forests that the certificate issued by Magistrate Fasi should not have been issued. He gave two explanations: the first was that the matter was within the jurisdiction of the Western District Magistrate Court and not the Central Magistrate Court; the second was that, at all events, there was indeed an appeal pending which would be heard by the WCLAC as Soon as funds became available to do so. Also on 26 April 2005, Magistrate Fasi wrote to the Commissioner in effect revoking the certificate of no appeal he had issued.

On 15 May 2005, the Appellant commenced proceedings in the High Court (No 255 of 2005) against the First and Second Respondents seeking a declaration, in substance, that the WCLAC had no jurisdiction to determine the appeal lodged by the First Respondent upon the grounds that the issue of the ownership of Rodo customary land had been decided in favour of the Appellant’s tribe adversely to that of the First Respondent in 1914 by Chief Ishmael Ngatu and again, with the same result, by the Marovo Council of Chiefs in their determination set out above in the Introduction. Declarations were sought that the appeal to the WCLAC was vexatious, frivolous and without merit.

On 17 May 2005, the Provincial Executive approved an agreement for the sale of timber rights by the Appellant and others of the Kadiki tribe in respect of Rodo land and, on 18 May 2005 a timber licence was issued to RDC in respect of "Rodo customary land", described in the Standard Logging Agreement for Customary Land as "between Nama River to Punutu River". (We interpolate that the Appeal Book contains a memorandum from a Mr Firigeni on behalf of the Attorney-General the Provincial Secretary of the Western Provincial Secretary expressing the view that the 1914 decision (referred to above) "truly reflects the ownership of Rodo land", (in favour of the Appellant’s tribe). It may be that this view led to the decision to issue the licence despite the pending appeal. However, we do not need to decide this question and say no more about it.)

On 8 July 2005, the WCLAC quashed the determination made by the WPE, holding that the WPE did not comply with the requirements of s8(3)(b) and (c) of the Forest Resources and Timber Utilization Act to determine "whether the persons proposing to grant the timber rights in question are the persons and represent all the persons, lawfully entitled to grant such rights and, if not, who such persons are" and "the nature and extent of the timber rights, if any, to be granted to the appellant". There was no determination of ownership by the WCLAC.

On 19 July 2005, Brown J ordered the materials filed in connexion with the Originating Summons be served on the Attorney-General and stayed the decision of the WCLAC pending judgment in the High Court.

On 12 September 2005 the First Respondent filed a summons in the High Court, in the pending proceedings seeking an injunction preventing the Plaintiff from conducting any logging activities on "Rodo land". Since that date, the Appellant and ROC have refrained from carrying out any logging operations on the land. However, in August 2005 the First Respondent and a contractor landed logging machines on what is claimed as Havahava land with the intention of commencing logging operations. This land is claimed by the Appellant as part of the Rodo land though, as it happens, the particular area is part of land claimed to have been given by the Appellant’s grandmother to the father of the present alleged owner, one Hami Lavi.

On 17 October 2005 the Appellant commenced further proceedings in the High Court (No 462 of 2005) seeking by writ of certiorari to quash the decision of the WCLAC. On 5 May 2006 Cases Nos 225 and 462 of 2005 were consolidated. On 15 September 2006, the Appellant sought further restraining orders against the First Respondent and the members of his tribe in respect of logging operations on the disputed land.

In Veno & ors v Jino & ors [2006] SBCA 22, this Court considered an appeal against the refusal by the Chief Justice to grant interlocutory injunctions to prevent logging on what was described as "Havahava land". As the Chief Justice noted at the outset, both parties (here, for simplicity, called the plaintiffs and the defendants) "do not deny that the Veala tribe is the owner in custom over Havahava land ... [but they] disagree over their various claims of membership of Veala tribe by virtue of their clans". The plaintiffs claimed to be members of the Luma and Kavele clans and that these clans were part of the Veala tribe. The defendants claimed that these clans were respectively parts of the Sugili and Kadiki tribes and thus not members of the Veala tribe. A certificate following a timber rights hearing convened under s8 of the Forest Resources and Timber Utilization Act had named certain persons as owners but not the plaintiffs. Three other persons ("objectors"), on behalf of themselves and others, not including the plaintiffs, appealed to the CALC against the findings expressed in the certificate. Those proceedings were settled by a consent judgment, it being agreed that the persons entitled to grant timber rights over Havahava land were the objectors together with certain others as trustees, again not including the plaintiffs. The plaintiffs disputed that the trustees represented all those entitled to customary ownership of Havahava land and asserted, moreover, that some of them had no rights in the land. They took the dispute to the Marovo Council of Chiefs which, however, found against them. The plaintiffs did not appeal to the Local Court but the successful parties, namely the defendants, gave notice to the Local Court that the decision of the Council of Chiefs was not wholly acceptable to the parties and then took no further action. The plaintiffs sought interlocutory injunctions against the defendants pending the determination in the Local Court. The Chief Justice refused relief, substantially upon the basis that the determination of the Council of Chiefs was final "as between the disputing landowners" and the claims of the plaintiffs were at all events "mere assertions insufficient to ground the injunctive relief sought", a view held by this Court to be both just and accurate. This Court held also that the notice given by the defendants had not commenced any proceedings in the Local Court and thus that there was no basis for the grant of interlocutory relief by the High Court.

It is important, indeed crucial, to note that (as is rightly conceded by Ms Bird for the First Respondent) the Appellants in the present proceedings were not parties to Veno or represented by any of the parties. The Kadiki tribe was not represented by the plaintiffs: they maintained they were members of the Veala tribe. Although the defendants maintained that the plaintiffs’ clans were parts of the Sugili and Kadiki tribes, the conclusion that, if this were correct, they were not entitled to rights over Havahava land was not litigated or determined: it was common ground. Nor was any issue raised as to the distinction, if any, between Havahava land and Rodo land.

The question whether Havahava land is part of Rodo land with separate rights of customary ownership as between the Kadiki tribe and the Bareke tribe was not an issue in Veno, let alone determined, either by the Chief Justice at first instance or this Court on appeal. Moreover, given the matters in issue, no information of a factual kind useful for determination of the issues in the present case is provided by the Veno judgments.

Not only was the Appellant not a party to the High Court proceedings, he was not a party to any of the preceding proceedings including, in particular those instituted and settled in the CLAC. As this Court held, the consent judgment was binding only on the parties to it and was not protected by the privative provisions of s10 of the Forest Resources and Timber Utilization Act.

Furthermore, the litigation was an application for interlocutory relief. Whether it was a final judgment for the purposes of the rules of res judicata must at least be open to substantial doubt.

"I am ... satisfied on the material before me and having regard to the findings of the Chief Justice ... [in Veno] (findings upheld by the Court of Appeal) that Havahava land, whilst contiguous with Rodo land, has been accepted to be a separate block. There is then no standing in the plaintiff to argue, nor is argument now available over that block dealt with in the decisions of the WCLAC given on the 17 April 2003 [i.e. the consent judgment dealt with in Veno] (for the determination of the Provincial Executive is so long ago that [a] claim now by Havea Majoria is statute barred.)

....The time limited for appeal [from the consent judgment of 17 April 2003] by s10(1) [of] one month has long past. The plaintiff cannot now seek to interfere with the established relationships which followed the grant of certificate of customary ownership (Form11) and subsequent logging licence affecting Havahava land, which must be deemed also to have identified as to ‘nature and extent’ for the purpose of s8(3)(c) of the [Forest Resources and Timber Utilization] Act and consequently cannot now be impugned by these proceedings. It was far too late when the plaintiff initiated his originating process to now say ... that Rodo land encompasses Havahava land, therefore this Court should bring up and review all that has gone before affecting Havahava land. The judgment of the Chief Justice upheld by the Court of Appeal maybe seen to extinguish and later agreement over the grant of timber rights affecting Havahava land.

This finding disposes of the claim for relief in A [semble 1] of the plaintiff’s originating summons. The plaintiff’s summons filed on 5 September relying on the earlier originating process can have no basis in the face of the finding of ‘no standing’ by the Chief Justice in those earlier proceedings [i.e. Veno] as the genealogy of those entitled to Havahava land rests with the 1st defendant’s line.

Orders sought by that summons of the 5 September 2005 restraining the 1st defendants and their contractors from logging on Havavaha land are refused.

The claim for relief in the originating summons (No 255 of 2005) to which Brown J referred, is for a declaration that the WCLAC had no jurisdiction to consider the First Respondent’s appeal to it from the decision of the WPE in his favour.

Brown J went on to consider the Appellant’s application (in proceedings No 462 of 2005) for a writ of certiorari to quash the decision of the WCLAC. His Lordship noted that the WCLAC merely quashed the decision of the WPE, although the grounds of appeal, clearly enough, had asserted the First Respondent’s customary right to ownership of the land in question. Accordingly, his Lordship held that the WCLAC had not complied with the requirement of s1 0 of the Forest Resources and Timber Utilization Act that it should "hear and determine the appeal".

The Appellant had contended that the question of the ownership of Rodo land had already been determined by the Marovo Council of Chiefs of 17 August 2003 and therefore that the issue was res judicata and not able to be reconsidered by the WCLAC. Brown J held that the decision of the Marovo Council of Chiefs was not made under the regime instituted by the Forest Resources and Timber Utilization Act and, hence, created no res judicata in respect of timber rights. His Lordship said: "The Land and Titles Act and the Local Court Act do not envisage the circumstances created by the Forest Resources and Timber Utilization Act, the manner and regime for the utilization of the forest resource" [sic] and stated that "the doctrine of res judicata ... has no place in the statutory regime of the Forest Resources Act". His Lordship considered that the appeal to the WCLAC remained on foot and needed to proceed to a proper hearing and determination of the issues entrusted to it by the legislation. In doing so, it would need to take into account prior decisions of the Chiefs in relation to the customary ownership of the relevant land, including the decision of 17 August 2003. In the meantime, his Lordship continued the injunction granted on 23 September 2005 preventing the Appellant from undertaking any logging operations on the disputed land.

The first ground of appeal is, in substance, that the learned trial judge erred in holding that Veno was determinative as against the Appellant of the issue as to whether Havahava land was part of Rodo land or was a distinct·entity·with different customary ownership.

To make out estoppel per rem judicatam or cause of action estoppel", it is necessary to show that the earlier judgment relied on was a final judgment, and that between the former and the present litigation there is identity of parties and of subject matter or "cause of action": see Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2) [1967] 1 AC 853 at 909-910, per Lord Reid who went on to observe, "It has always been said there must be privity of blood, title or interest ... " The requirement of identity of parties between the parties in the concluded action and the action in which the estoppel is raised is satisfied where there is privity in interest. In Gleeson v J Wippell & Co Ltd [1977] 1 WLR 510; [1977] 3 All ER 54, Sir Robert Megarry V-C propounded the following test for privity of interest:

"[H]aving due regard to the subject-matter of the dispute, there must be a sufficient degree of identification between the two to make it just to hold that the decision to which one was party should be binding in proceedings to which the other."

In Robinson Kafana & ars v Lucy Aute’e & anor, Palmer J (as he then was) adopted what Daly CJ said in Talasasa V Paia & anor [1980/81] SILR 93 in which the following essential elements of the principle of res judicata were identified –

(i) an earlier case in which the cause of action or point in dispute was really the same;

(ii) a final determination by a court of that cause of action or point on its merits; and

(iii) the raising of the same cause of action or the same point which has been distinctly put in issue by a party who has had the action or point solemnly and with certainty decided against him.

On behalf of the First Respondent it was submitted that the Appellant is related to the plaintiffs in Veno and hence is bound by the judgment against them. No evidence was produced either at the trial or before us to substantiate this claim. At all events, much would depend on the precise nature of the relationship, if any. As we have already mentioned, the plaintiffs in that case did not purport to represent the Appellant or, for that matter, any members of his tribe. To the contrary, their whole case was that they were not members of the Kadiki tribe. It is not possible to accept that it is just that the Appellant or his tribe should by bound by the action of a litigant whose case depended on the repudiation of any connexion with them. Moreover, the issues in Veno were not those sought to be litigated by the Appellant in the present litigation, as appears from the above discussion of that case.

It is also contended by Ms Bird that one of the decisions of the Chiefs (made 18 May 2005) considered in Vena bound the Appellant since he personally was named as having made a submission to the Chiefs. However, he is not named as a party to the proceedings or as accepting the decision, and it is most unclear whether the present dispute is the subject of that determination.

Enough has already been said to show that this ground of appeal has been made out.

The second ground of appeal concerns the dismissal of the Appellant’s summons for injunctive relief. As appears from the extract from Brown J’s judgment set out above, this summons was dismissed for the reason that the final relief sought in the originating summons should be refused having regard to the decision Veno. We have held that this conclusion was, with respect, in error. It follows that the order dismissing the summons cannot stand and the summons remains on foot. Other arguments on this ground of a procedural kind were addressed to us by Mr Apaniai for the Appellant and Ms Bird for the First Respondent but it is unnecessary to consider them.

The third ground of appeal concerns the finding of Brown J (extracted in part above) that the Appellant was bound by the decision of the WPE which was the subject of litigation in Vena since he had not appealed from that decision and time has long since expired for him to do so. As we have pointed out, the Appellant was not a party to those proceedings. Nor is there any evidence that he or the Kadiki tribe was privy to any of the parties. This ground of appeal is made out.

The fourth ground of appeal concerns the identification by Brown J of the geographical boundaries of Havahava land as specified in Veno. It is submitted that this was not binding on the Appellant and does not determine the issues he seeks to litigate in the present case. For the reasons already given, this ground must be upheld.

The fifth ground of appeal concerns the significance of the decision of the Marovo Council of Chiefs of 12 August 2003. It is submitted by Mr Apaniai for the Appellant that this decision bound the First Respondent: the parties appearing in the proceedings were the same as in the present litigation; the question of the extent of Rodo Customary land and its customary owners was the issue before the Chiefs; and this is one of the essential issues to be determined in considering the right to permit logging.

It will be seen that this case is the obverse of that decided by this Court in Francis Pitabalema & ors v Moses Biliki and ors (Civil Appeal No 4 of 2006). In Pitabalema, the respondents had obtained a decision from the CLAC, in connection with the grant of a timber agreement under the Forest Resources and Timber Utilization Act, to the effect that they were the customary owners of the relevant land, not the appellants. The appellants then commenced proceedings before the Council of Chiefs and obtained a decision in their favour on the question of customary ownership of the same land, the respondents not appearing, and sought to enjoin the respondents from logging on the land. The Chief Justice refused relief, holding that the respondents were estopped from disputing the decision of the CLAC. This Court dismissed the appeal.

It is not necessary to repeat here the discussion of the interrelationship of the Land and Titles Act, the Local Court Act and the Forest Resources and Timber Utilization Act. The crucial point is, where a decision is made by the CLAC as to customary ownership of land as a necessary preliminary to determining the disposal of timber rights, that decision is binding on the parties and s10 of the Forest Resources and Timber Utilization Act applies to it. Here, the decision of the Marovo Council of Chiefs was given before the WCLAC made its decision. Can a party to the former decision go behind it to relitigate the same question in the WCLAC?

Brown J disposed of this question by finding, as set out above, that the doctrine of res judicata "has no place in the statutory regime" of the Forest Resources and Timber Utilization Act. In the context, we understand that his Lordship meant that decisions made under the regime enacted in the Land and Titles Act and the Local Court Act did not affect decisions that were required to be made under the Forest Resources and Timber Utilization Act. With respect, we think that his Lordship was in error. In the event that a decision was made by the local court in accordance with Land and Titles Act as to any matter within the court’s jurisdiction, including a decision as to the identity of the customary owners of any particular parcel of land, that decision is binding on the parties and has the same force and effect as any other decision of the court on any matter within its remit. There is nothing in either the Land and Titles Act or the Local Courts Act that suggests decisions as to customary ownership fall into a special or distinct category, except of course, that there is a procedural requirement involving the traditional chiefs. Nor is there anything in the Forest Resources and Timber Utilization Act that limits or qualifies the usual effect to be given to decisions of the local court as to customary ownership. Indeed, the fact that s8(3) of that Act is aimed at the rights of disposal of timber and only incidentally - though, it may be, necessarily - at the identification of customary ownership suggests that the opposite is the case. Consequently, if there is a local court decision on the question of customary ownership that is binding on the parties in the conventional sense, they are estopped from seeking a different decision in respect of that question under the regime instituted by the Forest Resources and Timber Utilization Act. Furthermore, s254 of the Land and Titles Act (set out above) 254 provides that the decision of the local court as to customary ownership is "final and conclusive, and shall not be questioned in any proceedings whatsoever ..."

In this case, there is no judgment of the local court on the question of customary ownership: the question here concerns the status of the decision of the Marovo Council of Chiefs. It should be observed that s12 of the Local Courts Act assumes that, before the local court exercises its jurisdiction to determine a customary land dispute, there will have been a reference to the Chiefs, all traditional means of resolving the dispute have been exhausted and no decision wholly acceptable to the parties has been made by the chiefs. More than that, the local court cannot exercise its jurisdiction to determine the dispute until these events have occurred. This gives the involvement of the Chiefs and their decision statutory recognition. If the decision of the chiefs is acceptable to the parties, the jurisdiction of the local court is ousted. It is, presumably, unnecessary, since there will be no dispute for adjudication. If, on the other hand, the decision of the Chiefs is not acceptable to all parties, but those who disagree take no action, what is the status of the decision of the Chiefs? Can they simply act as if the decision is of no effect? In Veno this Court held that the party who had obtained a favourable decision from the Chiefs could not institute proceedings in the local court to confirm the decision. This conclusion reflected the procedural requirements of s12, in particular subs(3), and the undesirability of continuing litigation to vindicate a decision that had already been obtained where (by not referring the dispute to the local court) the unsuccessful party did not propose to utilize the statutory scheme in order to obtain a different decision.

Ms Bird, for the First Respondent, submitted that the consent judgment which was the subject of the decision in Vena determined the ownership of the Havahava land adversely to the Appellant and this should end the dispute, though she conceded that the Appellant was not a party to those proceedings. She contends that the Appellant could have challenged the consent judgment but did not do so. He should not now be permitted to controvert it. We do not see how that Appellant had standing to contest the consent judgment, since he was not a party to it. These submissions fail.

The statutory scheme is not entirely easy to interpret. In particular, it is unfortunate that the status of a decision of the Chiefs is not explicitly stated. However, the resolution of disputes over customary land is of vital importance to the people, their communities and the country. It is the duty of the courts to make the legislative scheme work if they can do so consistently with the language of the statutes. It seems to us that the key to understanding the scheme and applying it in a practical way is to recognize the important role assigned by the Parliament to the Chiefs and their decisions for the purpose of determining disputes over customary land.

If the party who succeeded before the Chiefs is left in the situation that the other party can simply act as though that decision had never occurred, that would tend to discourage attempts to settle disputes by traditional means. It would encourage parties with weak cases to ignore a summons by the Chiefs to hearings or not to take the’ Chiefs seriously, in the knowledge that any adverse decision will not affect them. It would tend seriously to undermine the authority of the Chiefs, a result that is obviously the very opposite of that intended by the legislative scheme. It would also encourage multiplication of litigation. It follows, as we think, that a party who disagrees with a decision of the Chiefs but who declines to take advantage of the legislative scheme for reconsidering that determination by invoking the jurisdiction of the local court must be considered to be bound by the decision.

In this case, the First Respondent declined to refer the decision of the Chiefs to the local court, seeking instead relief in the High Court, but then discontinuing those proceedings. The decision of the Marovo Council of Chiefs is therefore extant and is binding on the parties. It may be that the First Respondent can refer the matter to the local court if he maintains that the decision is unacceptable. The local court will then be in a position to exercise its jurisdiction to determine the question of the customary ownership and extent of Rodo land and Havahava land. Until the matter is determined by the local court, however, the decision of the Chiefs must stand and the First Respondent is estopped from maintaining in the WCLAC that it is wrong.

The appeal from the judgment of Brown J must be upheld. We make the following orders -

1. Summons No 255 of 2005 is reinstated and the matter is remitted to the High Court to determine in light of any evidence tendered by the parties. This matter is consolidated with the First Respondent’s Summons No. 255 of 2005 for the purpose of enabling a decision as to appropriate interlocutory relief that might be afforded to one or other or both parties.

2. The appeal against the decision of the WPE of 18 September 2002 is remitted to the WCLAC for hearing and determination in accordance with this judgment.

Court of Appeal of Solomon Islands

Majoria v Jino [2007] SBCA 20; CA-CAC 36 of 2006 (1 November 2007)